CHUNG LUNG SHUN v. ADAMS PARKING (INTERNATIONAL) LTD

IN THE COURT OF APPEAL

1995, No. 160
(Civil)

----------------------

J U D G M E N T

----------------------

Godfrey, J.A. :

Introduction

1. This is an appeal from an order of H.H. Judge Betty Kwan, made on 22 June 1995, dismissing proceedings brought in the District Court by Chung Lung Shun ("the employee") against Adams Parking (International) Limited ("the employer"). The employee claims to be entitled to compensation under the provisions of the Employees' Compensation Ordinance, Cap.282 ("the Ordinance") by which was constituted a scheme for the payment of compensation to employees who are injured in the course of their employment.

The judge's decision

2. The judge dismissed the employee's proceedings on the ground that they had been instituted out of time. The issue in this appeal is whether she was right to do so.

The employees' compensation scheme

3. It will be helpful, before turning to the detail of the relevant legislation, briefly to explain the nature of the scheme constituted by the Ordinance.

4. Employees' compensation is available to an employee who has suffered personal injuries at work. Generally speaking, no compensation is payable unless the injury results in some degree of permanent incapacity, or prevents the employee from earning full wages at his normal work for more than three days.

5. Notice of the accident must be given by the employee, or someone on his behalf, to the employer, and then by the employer to the Commissioner for Labour. A simplified procedure is provided for dealing with minor claims. This leads to the issue by the Commissioner for Labour of a certificate of compensation assessment, which covers all cases of injury in which no permanent incapacity is involved, and all cases of injuries causing not more than 5% permanent incapacity. An objection to such an assessment may be made in writing, by the employer or by the employee, and upon receipt of an objection the Commissioner may confirm or vary the assessment. Either party can appeal against the assessment to the District Court.

6. Claims which involve permanent incapacity are referred to an assessment board, which assesses the percentage loss of earning capacity caused by the injury. (In most cases, this will be a so- called "Ordinary Assessment Board". In certain special cases, it will be what is called a "Special Assessment Board"). The scheme envisages that, after the board has issued a certificate of assessment, the employer will enter into an agreement with the employee, within 21 days, to pay the employee the compensation due. The agreement is then submitted to the Commissioner for Labour, who, if the compensation agreed upon is not less than the amount payable under the Ordinance, approves the agreement. An employer who delays payment is liable to pay a surcharge. Any claim for compensation that is not, or cannot be settled, must be determined by the District Court, irrespective of the amount involved. Appeal from a decision of the court lies to that Court of Appeal.

Time limits

7. A scheme such as this can work properly only if time limits are imposed for the taking of such steps as may be necessary to see that its provisions are effective. The law frowns upon stale claims, and it is plainly important that this sort of legislation should prescribe time limits within which the employee must take the various steps necessary to prosecute his claim. In the case of the present scheme, such time limits are indeed prescribed.

The primary legislation

8. The first time limit appears in s.14 of the Ordinance. S.14(1), so far as is material, reads as follows:

"14(1) Except where otherwise provided by this Ordinance [emphasis added], proceedings for the recovery under this Ordinance of compensation for an injury shall not be maintainable ..... unless the application for compensation with respect to such accident (being an application to the Court by an employee under section 18A(2)) has been made within 24 months from the occurrence of the accident causing the injury ....."

9. It is clear that the prescribed time bar applies only in the case of an application to the court by an employee under s.18A(2) (of which more hereafter) and not to any application, not even an application under s.18(A)(2), "where otherwise provided by this Ordinance"; it does not, for example, apply to an application to the court by way of appeal under s.18, which (as we shall see) governs appeals to the court from decisions of an assessment board.

10. The next relevant section is s.16A, which so far as material, provides as follows:

"16A(1) Where -

(a) a claim for compensation arises in respect of an accident causing injury to an employee that results in temporary incapacity, whether total or partial; or

(b) a claim for compensation arises in respect of an accident causing injury to an employee and the percentage of loss of earning capacity as assessed .....

the Commissioner may assess the compensation.

16A(1A) Compensation shall not be assessed by the Commissioner under subsection (1) unless claim for compensation arises within 24 months after the happening of the accident."

11. I pause there. It is to be observed that, once again, the legislature has settled upon a time limit of 24 months from the date of the accident, this time for the making of a claim for compensation to be assessed by the Commissioner, just as, in s.14(1), it settled upon that period for the making of an application to the court under s.18(A)(2).

12. S.16(A)(2) provides for the amount of the compensation to be certified by the Commissioner and s.16A(3) provides as follows:

"16A(3) An objection to the amount of compensation assessed under subsection (1) may be made by the employer or the employee to the Commissioner in writing within 14 days after the date of issue of the certificate issued under subsection (2), or within such further time as the Commissioner, in the circumstances of any particular case, thinks fit".

13. Here, again, a particular time limit is specified, i.e., 14 days (subject to extension) for the making of an objection to an assessment.

14. S.16A(4) provides (so far as material) as follows:

"16A(4) On receipt of an objection under subsection (3) the Commissioner shall -

(a) if the objection relates to the assessment of the percentage of loss of earning capacity made by an ..... Assessment Board ..... forward a copy of the objection to the ..... Board ..... for a review .....; and

(b) after taking into account the objection and, subject to subsection (4A), any review referred to in paragraph (a) of this subsection, confirm, vary or cancel the assessment of compensation under subsection (1)."

15. Section 16A(4A) provides (so far as material) as follows:

"16A(4A) Where the ..... Board ..... on a review of its assessment ..... varies the percentage of loss of earning capacity to more than 5%, the Commissioner's assessment of compensation under subsection (1) ceases to have effect."

16. S.16A(5) provides for a fresh certificate to be issued after the review. S.16A(7) provides that such a certificate may be used as evidence in any court. S.16A(8) provides that the certificate may be made an order of the court. S. 16A(9) provides (so far as material) as follows:

"16A(9) Subject to section 18, the employer shall pay to the employee within a period of 21 days after

(a) the date of issue of the certificate issued under subsection (2); or

(b) where an objection is made under subsection (3), the date of issue of the certificate issued under subsection (5),

the balance (if any) of the amount of compensation stated in the certificate ....."

17. I need read no further in s.16A but I will briefly mention s.16G, which provides a procedure for review of assessments made by a board similar to that provided by s.16A for review of assessments made by the Commissioner.

18. S.16H provides for certificates of the board to be used in evidence, like certificates of the Commissioner given under s.16A.

19. S.17, which refers to agreements as to compensation, also contains time limits. The employer must enter into an agreement with the employee within 21 days after the date of the certificate, or give notice within 14 days that he does not intend to do so.

20. S.17B provides for cancellation of agreements by the court; again a time limit is prescribed. Application under s.17B must be made within 6 months after the Commissioner has approved the agreement.

21. I now turn to the sections on which this appeal will turn, s.18, which relates to appeals to the District Court, and s.18A which relates to determination of claims by that court. These two regimes, that prescribed by s.18, and that prescribed by s.18A, are markedly different.

22. S.18 and s.18A (so far as material) provide as follows:

"18(1) Subject to this section, an appeal shall lie to the District Court from any decision or assessment of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board.

(2) No appeal shall lie after the expiry of 6 months from the date of the decision or, in the case of an assessment, of the date of issue of the relevant certificate .....

Provided that the Court may, if it thinks fit, extend the time within which to appeal under this section notwithstanding that the time has elapsed.

(3) On an appeal under this section, the Court may confirm or reverse any decision, or confirm or vary any assessment, of the Commissioner, an Ordinary Assessment Board or a Special Assessment Board, or may substitute its own assessment, and may determine the amount of compensation payable and may make such order in respect thereof, including any order as to costs, as it thinks fit [emphasis added].

18A(1) Except where otherwise provided under this Ordinance, all claims for compensation, except to the extent that such claims are determined [by agreement or certificate] .....

and any matter arising out of proceedings in respect of such claims shall be determined by the District Court, whatever may be the amount involved, and the Court may, for that purpose, call upon any person to give evidence, if the Court is of the opinion that such person is, by virtue of his expert knowledge, able to assist the Court.

(2) An employee may, in the prescribed form and manner, make an application for enforcing his claim for compensation to the Court:

Provided that no application shall be made -

(a) in the case of a claim in respect of an injury to which section 16A applies, until after the expiry of the payment period ..... [the 21 days mentioned in s.16(A)(9)];

(b) in the case of a claim for compensation [for incapacity] ..... until after the expiry of 21 days after the [date of the relevant certificate]."

23. These are all the sections in the primary legislation to which I need refer.

The secondary legislation

24. Rule 16 of the Employees' Compensation (Rules of Court) Rules, made under the provisions in that behalf contained in s.50 of the Ordinance, prescribes the method of application to the court for the determination of any question as to compensation arising out of an accident.

25. Rule 16(1) reads as follows :

"16. Method of application

(1) An employee or an employer or any other person who desires the determination of any question arising out of an accident in which compensation is or might be claimed shall lodge with the registrar of the court a written application in Form 1, 2 or 3 in the Schedule ....."

26. A reference to the forms contained in the Schedule reveals that Form 1 applies to an application by injured employee in respect of compensation payable to him; Form 2 relates to an application on behalf of dependants of deceased employee in respect of compensation payable where death has resulted from injury to the employee; and Form 3 is a form of general application.

27. No form is provided for the initiation of an appeal under s.18 of the Ordinance.

The facts

28. I pass from that recitation of the relevant primary and secondary legislation to narrate the facts of the present case.

29. The accident occurred on 11 January 1989. The employee was employed by the employer as a carpark attendant. In the course of his employment, he was assaulted and he suffered personal injuries. The 24 months, within which, as we have seen, claims under s.14, and under s.16A, must be brought, accordingly expired on 10 January 1991. Well before that date the employer (who was aware of what had happened) gave notice of the accident to the Commissioner for Labour, who initiated the appropriate assessment procedure.

30. The claim being of the minor nature to which the assessment procedure refers, it was referred to an assessment board, and was the subject of a certificate of assessment by the board, which assessed the employee's loss of earning capacity at 4%. The assessment was made on 6 February 1991 and the certificate was issued on 25 February 1991. On 27 March 1991, the Commissioner issued a Certificate of Compensation Assessment; but by then (and within time) the employee had objected to the assessment by the board. This was duly reviewed, in accordance with the relevant statutory provisions to which I have already referred, but the board merely confirmed the original assessment. The relevant certificate was issued on 8 October 1991.

The employee's claim

31. On 3 September 1991, the employee sought to appeal (under s.18) against the original assessment made on 6 February 1991, and, he sought cancellation of the certificate issued on 27 March 1991. (On 3 December 1991, the employee amended his proceedings to include an appeal against the reviewed assessment issued on 8 October 1991).

The employer's answer

32. The employer submitted that the initiation of these proceedings, over 24 months after the date of the accident, was too late.

The result

33. The judge accepted this submission and dismissed the proceedings.

The employee's case

34. The employee, before us, submits that the judge was wrong. He accepts that, in the case of a serious injury to which the assessment procedure has no application, the employee must start his proceedings for compensation in the District Court within 24 months from the date of the accident. But in the case (as here) of a minor injury to which the assessment procedure does apply, he points out that there may well be delays in the assessment procedure (again, as here). The 24 months may go by before the assessment procedure is completed. It cannot be right in those circumstances, so he says, to deny the employee the compensation to which he would otherwise be entitled. He refers to s.16A, which relates to the determination of claims in respect of minor injuries. The prescribed time limit was complied with. The claim was made well before the expiration of the 24 months provided for by s.16A(1)(A). The scheme of s.16A, coupled with a proper reading of s.18, which provides for appeals against assessments by the Commissioner or by an assessment board, provides for a time limit. The time limit is 6 months from the date of the assessment, not 24 months from the date of the accident. A reference to s.18(2) does show this. Why, then, says the employee should s.18A(2) be invoked to defeat his claim by reference to the provisions of s.14 which, when it applies, requires the relevant application to the court to be made within 24 months from the date of the accident?

The employer's case

35. The employer, before us, submits that the reference to an "appeal" in s.18 is to be read as a reference to the one form of originating application before the District Court for which the Rules provide. S.18, although it provides for an "appeal", really does no more than enable the employee to apply for a re-hearing de novo of his claim for compensation; and such an "appeal", like any other claim, must be brought within the 24 months from the date of the accident prescribed by s.14.

The conclusion

36. I am satisfied that the employee is right. His proceedings here are in the nature of an appeal to the court under s.18, notwithstanding that the appeal is an appeal made in the form of an originating application, the form prescribed for which includes a claim for compensation. It is not an original application to the court, made under s.18(A)2, for the determination of his claim by the court in the first instance, which would have been an application made, by reason of the time limit prescribed by s.14, out of time. It may be that the forms are unhappily worded. Certainly, a separate form should be provided for an appeal to the District Court under s.18, as distinct from those provided for an application to that court under s.18A. Be that as it may, I am of the opinion that the employee's appeal here was not barred by the institution of his proceedings more than 24 months from the date of the accident. It is not suggested that the employee fell foul of the time limit prescribed for any step to be taken by him under the assessment procedure which related to his claim. S.14 cannot be construed so as to produce so fortuitous, arbitrary, and unjust a result, when the employee's claim for compensation arose, as everyone accepts, "within 24 months after the happening of the accident" for the purposes of s.16A(1A), and the claim was in no sense a stale claim. There is no room for the application of the provisions of s.14 to this appeal. The Ordinance itself otherwise provides.

37. I would, for these reasons, reverse the judge. I would allow the appeal and set aside her order dismissing the employee's proceedings. The result, I apprehend, will be that the judge will have to resume the proceedings without reference to this preliminary point taken by the employer, which has failed, and exercise as she thinks fit the powers conferred on the District Court by s.18(3) of the Ordinance.

Liu JA:

38. "Two routes, one regime" is the statutory framework provided by the Employees' Compensation Ordinance. This is what this appeal is all about.

39. Section 14 clearly confines its prescribed 24-month time limit to the making of an employee's application for compensation to the court under s. 18A. Within 30 days from the decision of the District Court, an appeal may, in some cases, lie to the Court of Appeal. See s. 23.

40. Section 18 is decidedly different from s. 18A. Section 18 deals with administrative appeals/applications to the District Court from, inter alia, an assessment made by an Ordinary Assessment Board under s. 16D(5) or compensation as assessed by the Commissioner under s. 16A(1). For these administrative appeals/applications, s. 18(2) and s. 16B(2) allow a period of six months.

41. The appeal from the assessment of the Ordinary Assessment Board in this case would seem to be out of time. But the Board's assessment was affirmed on review. The appeal from the decision given on review of the Board's assessment under s. 16GA is the real bone of contention, and that was in time. Review under s. 16GA enjoys the same prescribed period of six months under s. 18(2). I need not deal with it separately.

42. It is of interest to note that for obtaining an assessment by an Ordinary Assessment Board under s. 16D(5) or compensation award of the Commissioner under s. 16A(1), the claim procedure must also be initiated within 24 months after the accident. See s. 16A(1A). That is similar to the 24-month limitation period for an employee's application made under s. 18A. See s. 14.

43. The words within the brackets in s. 14(1) are not altogether easy to construe but that has to be stood over until another time when these words call for interpretation. In my view, s. 14 does not regulate an administrative appeal/application such as that from the Ordinary Assessment Board under s. 16D(5) or from the award of compensation made by the Commissioner under s. 16A(1). These administrative appeals/applications do have their own built-in time limitation period. In my view, they are free standing from and do not fall foul of s. 14. In any event, if only for these convoluted sections time for entertaining these appeals/applications should have been, in the exercise of the court's discretion, extended. Therefore, I, too, would allow the appeal and make the order as proposed by Mr Justice Godfrey.

Bokhary JA:

44. All the sections to which I am about to refer are of course sections of the Employee's Compensation Ordinance, Cap 282.

45. The District Court judge held that the employee's appeal to the District Court was time-barred by s. 14(1). But that appeal was under s. 18. And the time limit laid down by s. 14(1) applies to applications under s. 18A(2). S. 14(1) says so in terms. It does not say that such time limit applies to appeals under s. 18.

46. It is true that s. 18 involves the District Court starting afresh. And that is a very good reason why - as this Court held in Chan Kit v. Sum Wo Industrial Manufactory [1989] 2 HKLR 230 - it is not necessary to file grounds of appeal in a s. 18 appeal. But it is no reason at all for treating s. 18 appeals as subject to a time limit expressly laid down for s.18A(2) applications.

47. Doing that is against the letter of s. 14(1). I have already indicated why.

48. It is also against the spirit of s. 14(1), which sets its face against 24 months of inactivity. S. 18 appeals are not preceded by inactivity. By definition, appeals are preceded by some activity since there must be something to appeal from. As one sees from s. 18(1), there must be some decision or assessment to an appeal from. My brother Godfrey has already referred to the 24-month time limit under s. 16A(1A). And, as one sees from s. 18(2) there is six months from the date of a decision or the issuance of a certificate of assessment within which to launch an appeal against such decision or certificate.

49. The jurisdiction of the District Court in a s. 18 appeal includes determining the amount of compensation payable and making such order in respect thereof, including any order as to costs, as it thinks fit. That enables the District Court to make an enforceable order for compensation. That no form has been prescribed for launching an appeal for that purpose does not defeat that purpose. The District Court has procedural power, as an inherent feature of its jurisdiction under s. 18, to allow an appeal to be brought before it under that section in any way which, as a matter of substance, duly invokes such jurisdiction. By "duly" I mean plainly and with proper service on the other side.

50. So I too would allow this appeal to reverse the judge's order.

51. In the result, therefore, the matter will go back to the District Court where the s. 18 appeal will be determined on its merits.

52. Before we hear counsel, I would like to express my indebtedness to counsel on both sides; and I am sure that Mr Sarony will not begrudge my saying this: Miss Pinto's arguments are always helpful and rarely unsuccessful. This is one of those rare occasions.